Wisconsin v. Yoder: Respecting Children's Rights and Why Yoder Should be Overtuned
![handle is hein.journals/charlolwr4 and id is 51 raw text is: WISCONSIN V. YODER: RESPECTING CHILDREN'S
RIGHTS AND WHY YODER SHOULD
BE OVERTURNED
David Gan-wing Cheng*
Parents want what is best for their child. The preceding state-
ment is practically a truism, subject to rare exceptions. Parents al-
most always strive to act in the child's best interest as they interpret
it to be. Since parents and children form communal families, soci-
ety also plays a role in protecting the child's well-being. With two
competing advocates, at times society and parents have differing
interpretations as to what is in the child's best interests.' An abso-
lute answer to the question of what is best for the child or what is in
the child's best interests, however, does not exist. The answer is
always qualified by the baseline one uses to evaluate the question.
The baseline may, for example, be spiritual salvation, intellectual
growth, social development, fitness to compete for economic re-
wards in the future, or the child's current gratification. This list is
by no means exhaustive, and any baseline which does not outright
reject basic morality or liberal-political norms should be seen as
reasonable.2 Even after agreeing on a particular baseline, whether
a particular mean is the best or even proper for attaining the de-
sired end is debatable. Society, however, usually defers to the judg-
ment of parents on these matters because it is the parents' natural
duty to raise the child.3 Everyone generally recognizes that parents
have a fundamental right to direct the upbringing of their children.4
Although society defers to parents on many aspects when it comes
* Juris Doctor, 2012, Mercer University School of Law. I would like to dedicate this
article to my grandmother, mother, and father with love.
1. For example in some African countries, parents mutilate the female genitalia of infant
or adolescent girls in a surgical procedure as a religious practice. The labia minora and labia
majora are cut away, the clitoris is removed, and the vaginal opening is usually stitched shut
leaving only a tiny opening for urine and menstrual fluid. Dena S. Davis, The Child's Right
to an Open Future: Yoder and Beyond, 26 CAP. U. L. Rv. 93, 98 (1997).
2. See JoHN RAwLs, PoLrIcA. LimERAUSM 61 (Columbia 1993).
3. See Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
4. The United States Supreme Court created this fundamental right in a 1925 case in
dicta. Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925). Like all fundamental rights,
however, the natural right to direct the upbringing of one's child has a history that long
precedes the fundamental right's creation. See Adjudicating What Yoder Left Unresolved:
Religious Rights for Minor Children After Danforth and Carey, 126 U. PA. L. Rrv. 1135
(1978) [IEREINAFTER Adjudicating What Yoder Left Unresolved].
45](ViewImageLocal?handle=hein.journals/charlolwr4&div=5&collection=&method=preview&ext=.png&size=3)
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Wisconsin v. Yoder: Respecting Children's Rights and Why Yoder Should be Overtuned
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